Obtaining an Independent Evaluation

A court-appointed examiner is not adverse and is not an ally. The examiner answers the question the court asked, in the form the statute prescribes, and files the report with both parties. That is a useful arrangement and it is not a substitute for an examination arranged by counsel, which asks the questions counsel needs answered and which stays confidential while the decision to use it is being made.

Why a second examination

The reasons are practical rather than adversarial. A court-appointed examiner ordinarily conducts one interview, often in a jail, sometimes without the records that would explain what is being observed. A defense examination can be scheduled for more time, can follow the collection of school, medical and military records, and can include testing the first examiner did not administer.

The second reason is scope. A court order is addressed to a statutory question, and an examiner who answers it has done the job. Counsel frequently needs answers to adjacent questions: whether a condition bears on the mental state required by the offense, whether a history of head injury explains the behavior described in the reports, whether a defendant restored on medication is likely to remain stable through a trial. None of these is in the order, and none will appear in the report.

The third reason is that a single expert opinion is difficult to contest with cross-examination alone. Where the report is thin or has skipped elements the statute requires, examination of the author exposes the gap. Where the report is competent and simply reaches an unfavorable conclusion, only another examination produces evidence to weigh against it.

The application and the funding

Federal law supplies the mechanism. On finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court authorizes counsel to obtain investigative, expert or other services. The ex parte feature is the important one: a showing of necessity usually describes what counsel expects to find, and making it in open court would convert a funding request into a disclosure of theory.

Compensation is capped. Services obtained with prior authorization are limited to a stated maximum exclusive of reasonable expenses, unless the court certifies that a larger payment is necessary for services of an unusual character or duration and the chief judge of the circuit or a designee approves. Services obtained without prior authorization are subject to a lower cap, with greater amounts approvable afterward in the interest of justice where timely procurement could not await authorization.

The order of operations matters more than the numbers. An expert engaged after prior authorization, with a written estimate describing the records to be reviewed and the testing proposed, is in a position to seek an excess-fee certification before the work is done. An expert engaged first and paid later is arguing about an invoice.

The constitutional floor

Access to an expert is not purely a matter of statutory funding. The Supreme Court held that when a defendant demonstrates that his mental condition at the time of the offense will be a significant factor at trial, the state must assure access to a competent mental health expert who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense. The Court later made clear that the requirement is not satisfied by a neutral expert available to both sides in every case, and that the assistance owed runs to the defense.

Two limits are worth naming. The right is triggered by a threshold showing rather than by a request, so the application has to identify what makes mental condition significant in this case. And the right is to a competent expert, not to an expert of the defendant's choosing, so a court that appoints a qualified professional has generally satisfied it even where counsel would have preferred someone else. State courts have divided on how far the principle reaches beyond mental condition into other fields of expertise.

Some state schemes reduce the problem structurally rather than constitutionally. Ohio permits the court to order more than one evaluation and allows the prosecutor and the defendant each to recommend examiners, which gives the defense a voice in the choice without a separate funding application. Where a statute of that kind exists, using it is often faster than an independent retention, though the resulting report is filed with the court and carries none of the confidentiality that a privately arranged examination has.

Confidentiality and when it ends

A defense examination begins as an extension of the lawyer's own work. It ends that way only if the expert is never used. Once notice of expert mental condition evidence is given and the government's examination results are disclosed, the defense must disclose the results and reports of any examination on mental condition about which it intends to introduce expert evidence. Failure to give notice, to submit to an ordered examination or to make required disclosures permits the court to exclude the defense expert evidence entirely.

The sequence is therefore worth planning backward from the trial date. The decision to designate is the point of no return, and it should be made with the report in hand rather than in advance. Everything the defense expert learns from the defendant sits under the same tension described in statements made during an evaluation, and the court's own examination, governed by the competency evaluation rules, proceeds on its own schedule regardless.

Where the case turns on mental state at the time of the act rather than on present capacity, the expert's work is aimed at the insanity defense, and the record the expert needs is different: contemporaneous accounts, medication compliance around the date of the offense, and any clinical contact close in time to it. The ordinary considerations in retaining a defense expert all apply, with the added complication that the subject of the examination is the client, whose cooperation cannot be assumed and whose account may change between interviews.